5.  The applicant was born in 1935 and lives in Gdańsk.
6.  The applicant is a journalist and at the material time was the editor in chief of a free newsletter called Kolbudzkie ABC, Periodical, Private, Independent (Periodyk, Prywatny, Niezależny). In the 13th edition of the newsletter, of 9 October 1998, the applicant published the following article:
“The Peter Principle [the title is repeated six times]
The Peter Principle: During his career in administration a civil servant aims to rise to a position in which he will be totally incompetent.
Several years ago Mr A.W. took over and swiftly left the office of mayor. At that time this matter was widely commented upon. The surprise of the ABC editors was thus great when we saw the name of the former mayor of the commune (wójt) on the list of the candidates for the council (radny).
This is not a candidate like any other, as he became famous for the scandal of disposing of the rights to an excellent water source in Pręgów, for half price, to the Gdańsk company Saur...
We were shocked when we discovered the name of the unfortunate negotiator‑forester on the list of candidates for the council. It can only mean that the failed would-be councillor thinks that the inhabitants of Kolbudy and the surrounding area have forgotten about the Saur blunder.
This confirms the Peter Principle – the former mayor reached his level of incompetence a few years ago. That blunder (wpadka) did not put him off and he is crawling up (wczołguje się) again to another level... a Polish speciality....”
7.  Mr A.W. was not elected in the municipal elections of 11 October 1998. However, he succeeded in the supplementary elections to the Municipal Council of 6 June 1999.
8.  On 8 January 1999 Mr A.W. lodged with the Gdańsk District Court (Sąd Rejonowy) a private bill of indictment against the applicant, charging him with defamation. He submitted that, two days prior to the elections to the Municipal Council, the applicant had in his publication debased him in public opinion, which had undermined public confidence in him, as a consequence of which he had lost the election. In particular, A.W. complained about the applicant’s allegations that he had sold the rights to water sources for half price and the applicant’s statement that as mayor of a commune he “had already reached his level of incompetence a few years ago, but that this blunder had not put him off and he was crawling up again to another level”. Finally, A.W. considered that the title of the article, repeated several times, was defamatory.
9.  On 4 April 2000 the Gdańsk District Court found the applicant guilty of defamation under Article 212 of the Criminal Code as well as of proffering insult under Article 216 of the Criminal Code. The applicant was sentenced to a fine of 1,000 Polish zlotys (PLN) and was ordered to pay PLN 200 to a charity. Furthermore, the applicant was ordered to reimburse the private prosecutor PLN 300 for the costs of the proceedings. The court found as follows:
“In the court’s opinion, both the form and the content of the article ‘The Peter Principle’ clearly show that [the applicant’s] purpose was to defame the private prosecutor in alleging abuses when signing the contract with the Saur company, so that the day before the elections to the Kolbudy Municipal Council he would lose the public confidence necessary for him to hold public office”.
10.  On 16 August 2000 the applicant appealed against the judgment alleging, inter alia, a violation of Article 10 of the Convention.
11.  On 30 January 2001 the Gdańsk Regional Court allowed the appeal, quashed the judgment and remitted the case.
12.  On 10 December 2002 the Gdańsk District Court gave a judgment. The court acquitted the applicant of the charge of defamation under Article 212 of the Criminal Code. It found however that the applicant had insulted A.W. (znieważenie), within the meaning of Article 216 §§ 1 and 2 of the Criminal Code, in that he had stated in his article “The Peter Principle” that he “had already as mayor reached his level of incompetence a few years ago, but this blunder [had] not put him off and he [was] crawling up again to another level”. The court, however, decided to conditionally discontinue the proceedings for a probationary period of one year, as it had established that the guilt and danger to society of the act committed by the applicant had not been significant. The applicant was ordered to publish an apology in Kolbudzkie ABC, to pay 50 Polish zlotys (PLN) [approximately 13 euros (EUR) at the material time] to a charity, to reimburse the private prosecutor PLN 300 for the costs of the proceedings and to pay the State Treasury PLN 118 for the costs of the proceedings.
13.  The trial court, in acquitting the applicant of the charge of defamation, had referred to standards set by the Convention and the Court, underlining the importance of free speech in the context of elections and considering that the limits of acceptable criticism as regards a politician were wider. In particular the court took into account that criminal proceedings had been instituted against Mr A.W. in which he had been charged with mismanagement while selling the above-mentioned water source. Although Mr A.W. was acquitted in this set of proceedings, the court considered that the applicant in his article had merely alleged his incompetence which had been within the limits of acceptable criticism.
14.  With regard to the charge of proffering insult under Article 216 of the Criminal Code the trial court established as follows:
“The statement about A.W., in the article ‘The Peter Principle’, that he ‘[had] as mayor reached his level of incompetence a few years ago, but this blunder [had] not put him off and he [was] crawling up again to another level’ amount to proffering insult because the use of those words, particularly the word ‘crawling’ are undoubtedly pejorative and the fact of publishing those words in the newsletter Kolbudzkie ABC qualifies that act as an insult proffered through the mass media.
At the same time the court has established... that this statement objectively violated the good name of the person against whom it was directed.
...
There is thus no doubt that in the present case the conditions for the offence of proffering insult through the media, under Article 216 §§1 and 2 of the Criminal Code, have been fulfilled....
...against the background of the collected evidence, [the applicant] should be considered guilty... However, [while] the social danger of the act committed by [the applicant] is not significant, it is undoubtedly not unimportant (znikoma). In the light of the above the court finds that the circumstances in which the applicant had committed the offence of insulting [Mr A.W.] in the newsletter Kolbudzkie ABC were established beyond any doubt. ...the court has thus decided to conditionally discontinue the proceedings for a probationary period of one year...
The court also has regard to the fact that the insult related only to the public activity of the private prosecutor and it is commonly known that a person who undertakes such activity should be prepared to accept attacks against himself, relating to the assessment of his work or allegations made during an election campaign, more often than other people in society. At the same time, it is known that for the proper functioning of democracy it is necessary to secure the right to unrestrained criticism of actions taken by elected representatives.
...
The [payment to the charity in the amount of PLN 50] is intended to cause real detriment to the accused, against whom the criminal proceedings have been conditionally discontinued. In setting the amount of the fine the court took into consideration the rather difficult financial situation of the accused and the insignificant danger to society of the offence attributed to him....”
15.  Both the applicant and the private prosecutor lodged appeals against the judgment. The applicant maintained that he had not intended to insult the politician and that he had not been aware that his literary metaphor could be understood as an insult. His actions were motivated by the interest of the local community and he had acted within the boundaries of admissible criticism and freedom of press.
16.  On 21 March 2003 the Gdańsk Regional Court dismissed the appeals and ordered the applicant to pay PLN 50 for the costs of the proceedings. The court held as follows:
“...taking into account reading of the whole of [the applicant’s] article, and in particular the negative and contemptuous-sounding expression “to crawl up to another level”, there is no doubt as to the fact that we are dealing with an insult. ...
According to the court [the applicant] wrongly interprets the boundaries of acceptable criticism. Insult or abusive language should by no means be included in the definition of criticism. Criticism consists of a negative or positive assessment of someone’s action or attitude; it is however restricted to the purpose of denouncing negative attitudes. To reach this objective it is not necessary to use statements that insult the person in question and for this reason exceed the boundaries of acceptable criticism. The concept of acceptable criticism applies to the offence of defamation and only in so far as it concerns a charge raised against such person. To cover by this principle a statement that was not a charge against this person, but an expression of contempt and disrespect, would be against the [law]. All criticism should be limited by fairness and the above-mentioned purpose of public interest. In the present case these boundaries were overstepped and it was not necessary, for the purpose of the protection of a public interest, to commit an insult. To sum up, the applicant’s action for the purpose of a socially justified interest could not influence [his] responsibility for acting in a debasing manner and, in consequence, for the insult committed by him...”